This is a blog about the future of digital media law from Laurence Kaye. Laurence runs Laurence Kaye Consulting Limited (click here), bringing insight an clarity to the complexities of the digital world.

March 29, 2015

2015 - The Digital Media Law Battle Lines Are Drawn

Dear reader

Make no mistake, this year marks the start of the real showdown for copyright law in Europe, alongside parallel debates taking place in the US and elsewhere.

The momentum for change in Europe comes from the inclusion of copyright (as well as data protection, telecoms regulation, digital infrastructure et al) as part of Commissioner Oettinger's Digital Single Market Agenda portfolio. You can get the picture from the Commission's Digital Single Market infographic - here - and the words in the Commission's Press Release issued on March 25th here, which set out the Commission's priority areas for action.

The Commission's infographic quotes some wonderful sounding stats, including a potential 340b euros in additional growth and hundreds of thousands of new jobs. That would be great; we're all agreed on that.

There's also no doubt that Commissioner Oettinger has great passion for the potential of this market and he certainly "gets" social media - you need to follow on Twitter to stay in touch with him and his team here and via #digitalagenda. (The Commission's full strategy for realising the potential for the Digital Singe Market is due to be published this May.)

But there's a problem or, rather, a strong likelihood of a very polarised debate which will make getting consensus between all the players in the creative industries harder to achieve. The Commission talks about obstacles, barriers and blocks, citing geo-blocking and an out of date copyright regime as examples. This is echoed in the European Parliament's recent draft Report on the 200 Infosoc (Copyright) Directive. Its core finding according to Rapporteur Julia Reda was that "The provisions of 2001’s copyright directive have not been able to hold step with the increase of cross-border cultural exchange facilitated by the Internet. The current copyright regime hinders the exchange of knowledge and culture across borders. To meet current challenges, the legislation needs to be updated to current practices and harmonised further."

By depicting copyright as outmoded, and as a barrier and obstacle to access and consumer choice, the battle lines are set. Now this isn't to say that there isn't a case for some adaptation of copyright law. There is a legitimate debate to be had about the nature and effect of differences in national copyright exceptions as an example. The same applies to an analysis of the merits of a pan European copyright title. But it is simplistic to suggest that the territorial nature of copyright, and with it the ability to licence on territorial basis, is inherently outmoded or indeed would necessarily disappear if a pan European copyright law was introduced.

So let's have a proper debate founded on facts. Let's not be afraid to confront difficult issues and where there, based on evidence, there's a proven case for 'copyright catch up', to make an appropriate change. But we also need to remember that copyright is only part of the story. In the European Publishing Council's 2014 Vision Paper on Copyright (which can be downloaded here), we argued that there are ‘3 Digital Elements’ – technical infrastructure, enabling copyright framework and practical solutions – which form the foundation for realising the potential for the market for digital content.

Adjusting copyright, by itself, will not deliver the goods. 'machine to machine' communication of rights and licensing, direct to consumer platforms and a host and variety of other solutions, are also essential elements. And before legislative change is made, we need to remember that many of the tools for sharing and licensing content for non-commercial and/or commercial purposes are already widely available. Discovery may be more of a challenge which technology may help solve.

I'll return to the issue of territoriality in another post. It's a complex issue, touching on location for legal purpose of the act of making available as well as EU rules governing the free movement of goods and services. The devil in all of this is in the detail and in the evidence. Let's not have a simplistic and 'old world' polarised debate.